PLATT v THE NOMINAL DEFENDANT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and MEAGHER JJA 22 November 1989, 22 November 1989 [1989] NSWCA 166 NEGLIGENCE — no question of principle. ORDER Appeal is dismissed with costs. Samuels JA This appeal is from a decision of his Honour Judge Madgwick in which he gave judgment for The Nominal Defendant, the present respondent, in an action for damages brought in the District Court by the present appellant arising out of a motor vehicle accident which occurred on 21 June 1981. The circumstances shortly were these. The appellant then holding a provisional licence and aged seventeen years with only about two months' driving experience, was driving at about two o'clock in the morning up a slight hill; the grade is not precisely determined by the evidence but towards a crest and rounding a very slight right-hand bend. His evidence was that at about the moment that he came over the crest he was faced with the dazzling headlights of a vehicle travelling towards him which disoriented him, and he swerved to the left, lost control of his vehicle and the last he remembered was a collision with a power pole. It is clear that he did collide with a power pole in bushland to the left of his correct side of the road, so that ultimately he must have moved to the left as he explained and in that collision he unfortunately sustained injuries of some severity. The vehicle which the appellant identified as the cause of his damage did not stop. Hence the action against The Nominal Defendant. There is another version, however, given by a witness, Mr Jones, quite unconnected with the cause of either party. He was travelling in the opposite direction and there were two vehicles some distance ahead of him, he being, as it were, the third in a column of three. He was unable to say whether the leading one of these two vehicles had its headlights on the high beam or low beam. They both were about 400 yards ahead. I infer from the evidence that they were travelling fairly close together. These two vehicles disappeared over the crest of the hill at almost a split second interval from the moment when the appellant's vehicle, as it evidently was, came over the top towards Mr Jones. He describes when then happened in this way. The appellant's vehicle came right across to its incorrect side of the road (that is, to Mr Jones' correct side), to the extent that three of its wheels were on the gravel, and then skidded sideways and, to use Mr Jones' words, sharply careened off to the other side of the road. It went off into the scrub and collided with a power pole. The learned judge thus had to resolve what, in my view, was a plain conflict of evidence, although Mr Trew QC, for the appellant, has put a very persuasive argument designed to eliminate any conflict, or at least to diminish its effect. The learned judge found that there was a crest, that there was an oncoming vehicle and thought on the probabilities that the leading vehicle of the three to which I have referred had its headlights on the high beam since it was driving in 2 UNREPORTED JUDGMENTS a derestricted country area. So it may be said that the judge found the elements of the appellant's case in the appellant's favour, save for the critical ingredient of causation. If it be assumed further that the leading vehicle did have a duty to dip its headlights and that there was a breach of that duty, then attention is focused even more sharply on the question whether the appellant had discharged the onus of showing that it was this breach of duty which caused or contributed to the accident to which he deposed. The learned judge's view, with which, as I have said, I would respectfully agree, is that there is a marked difference between the two accounts - that of the appellant and that of the witness Jones. The appellant in chief said clearly that when the headlights appeared he swerved to his left, which would have been, one would think, a reasonable reaction to an event of that kind. His evidence in chief is that in fact he continued upon the same track to the left until he ran into the power pole. According to Mr Jones, however, the appellant first moved very sharply to his right - indeed, right across to almost the extreme incorrect side of the road - and then back to the left. In cross-examination this was put to the appellant, who said that it might have happened but he could not really remember what had occurred. I feel, however, that the account he gave initially in chief was plain enough and, the learned judge was entitled to infer, represented his best recollection of what had occurred. Judge Madgwick said Mr Jones' account, which he preferred, was consistent with inattention or fatigue on the part of the appellant. Mr Trew emphasised that such tentative conclusions were really no more than speculations. Let it be assumed that that is right, in the sense that they are not inferences from the proved primary facts but that they merely represent judicial musings as the judge grappled with the critical question before him; which was whether he was satisfied that the appellant had established the case he set out to prove. There was another factor which the learned judge took into account which was this. The plaintiff said that it was not until two or three, perhaps four, weeks after the accident that he really recalled what had happened and he did not mention to anyone the blinding headlights which had, to use his own phrase, run him off the road, until a lengthy and detailed conversation with an uncle who was an experienced police officer. The judge was attains to negate any suggestion that any impropriety occurred in the way of coaching the plaintiff in a story which he did not himself reveal and I would, of course, take exactly the same view. But it is an odd circumstance that, there being no medical evidence which might explain it, the plaintiff for such a long time did not recall apparently or discuss with his family an event which must, if it had occurred, have remained very clearly in his mind. It is an unfortunate case because the appellant sustained injuries which are a handicap to him in various ways and because no criticism has been made or could be made of his honesty. Nonetheless, it is very much the sort of case which falls to be determined by a primary judge. It does not matter, it seems to me, that the judge failed to emphasise the extent to which he depended upon his assessment of the plaintiffs credibility. He preferred the evidence of the witness Jones, and that is most understandable. That produced what I think was a serious discrepancy between the two versions of the accident. That focused further analytical attention upon the nature of the appellant's case and the question whether the judge was satisfied on the URJ PLATT v THE NOMINAL DEFENDANT (Meagher JA) 3 probabilities that what the plaintiff said had indeed happened. He decided that he could not be satisfied and it seems to me that in the circumstances this Court has no authority to intervene. I find it impossible to say that the learned judge was wrong. In those circumstances, I would propose that the appeal must be dismissed with costs. Kirby P I agree. Meagher JA I also agree. The order of the court accordingly is that the appeal is dismissed with costs. Counsel for the Appellant: J Trew QC and GH Johnson Solicitor for the Appellant: McGirr James Hall and Associates Counsel for the Respondent: M Williams Solicitor for the Respondent: Solicitor for GIO of NSW